Explaining Our New Agreement with Asbury Partners

On April 5, 2006, the Asbury Park City Council passed a resolution to execute a “Dispute Resolution Agreement” with Asbury Partners. This agreement was designed to address the following:

Priority of projects;
Time frames for completion;
Financing commitments;
Consequences for failure to perform.

Since the passing of this resolution, a number of questions have been raised by various members of the public. I will attempt to address some of the most pressing questions here.

Why didn’t the public get to see the agreement prior to the April 5, 2006 City Council meeting?
On Thursday, March 30, 2006, the governing body had an Executive Committee meeting to discuss the conclusion of our negotiations with Asbury Partners on this issue. At the end of this meeting, we agreed that we wanted the final agreement to be available on the City website for the public prior to the April 5, 2006 Council meeting. We agreed that the public deserved to see the agreement prior to the meeting and that this reflected our desire to be responsive and transparent.

On Monday, April 3, 2006, I was made aware that the document had not yet been posted to the City website and that it may not be ready to be posted prior to the meeting. Upon hearing this, I expressed my extreme displeasure with a member of the subcommittee. I explained to this person that I had, in good faith, let members of the public know that the agreement would be available and that I felt this was a very unfortunate development.

While I am comfortable with much of the final content of the agreement, I am very disappointed with what may be perceived by the public as a lack of transparency on the part of the governing body.

I have shared this concern with my fellow council members and with the City Manager and I have agreed to reserve public comment on who was ultimately responsible for this error until after we have had a chance to discuss the details during our April 19, 2006 City Council meeting.

It seems that the timelines and financial commitments in the agreement only cover a limited amount of the work that needs to be done. Why doesn’t the agreement cover ALL the work that needs to be completed?
Let’s use Schedule B that outlines the work to be done on Convention Hall as an example. Here we have clear timelines, outlines of work to be done, and specific amounts for the cost of the work for A-E, which include: Window Replacements, Hazard Repairs, Interior Storefront Replacements, Arcade Entrance Structural Repair, Exterior Storefronts and Entry Doors.

Then we come to Section F titled, “Entire Building Renovation Design.” This section includes a timeline for the following: Schematic Design (January 2007), Design Development (April 2007), Parties to meet to agree on construction timeline (August 2007), Construction Permits Complete (September 2007), and Renovation tasks pursuant to construction timeline to begin (October 2007).

The key item here is “Parties to meet to agree on construction timeline.” This means that by August 2007, we will have a construction timeline, outlines for work to be done, and specific amounts for the cost of the work. It will also mean, pursuant to language in the agreement, that Asbury Partners will have to post financial commitments to complete this work and construction will commence in October 2007.

Why do they only have to post 25% of the project construction costs?
I, too, raised this question with our negotiating team. I was told that: First, 10% is the industry standard, so getting 25% was a good thing. Second, Section 4(b) of the agreement, “Projected Costs,” outlines that Asbury Partners must post performance bonds that cover the costs of the ENTIRE construction contract prior to construction beginning.

Did we negotiate away our ability to name Asbury Partners in default?
No. We still are able to name Asbury Partners in default in the future. We did agree that on the items addressed in Schedules A-E we would not name them in default on any past issues of non-performance.

What if Asbury Partners doesn’t do what they are supposed to do?
Let’s use the 5th Avenue Pavilion as an example. In Schedule A it says that they are supposed to complete construction on emergency repairs by June 2006. Let’s pick one item from the list, “remove paint from brick.” If by the end of June, the paint is not removed from the brick, we will send Asbury Partners a “Letter of Concern.” Once they get this letter, we have 10 business days to resolve the issue with them. If we do not feel the issue is adequately resolved in these 10 days, then we will send them a “Letter of Unresolved Concerns and Request to Arbitrate” and we will enter into binding arbitration to resolve the issue. Once the written demand for arbitration is sent, each party has 45 days to conclude their presentation to the arbitrator. After that, the arbitrator makes a binding decision.

Closing Comments
I hope that the information above addresses the top concerns that citizens have raised with me regarding this agreement. Along with this commentary, I offer the following.

Do I feel that the Waterfront Redevelopment Subcommittee worked extremely hard throughout these negotiations and should be commended for this? Yes.

Do I agree that if Asbury Partners were serious about rehabilitating these properties when they first came to town that this planning work would already have been done? Yes.

Do I agree that the former governing body was short-sighted for not having this kind of accountability in the original agreement? Yes.

Do I feel that our Redevelopment Attorney, Mr. Aaron, should have better advised the former governing body during the negotiations on the original agreement? Yes.

The reality is that these issues are behind us and we now have a clear plan for action and mechanisms for accountability to ensure the work is done. Having this level of accountability with Asbury Partners was one of my top goals when I took office and I am glad that the entire governing body has moved in this direction.

Am I satisfied with this agreement? Yes.